NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 8 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER LEWERT, On Behalf of No. 17-56607 Himself and All Others Similarly Situated, D.C. No. Plaintiff-Appellant, 2:11-cv-10803-AB-JPR

v.

MEMORANDUM*

BOIRON INC. and BOIRON USA, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Submitted November 6, 2018** Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,*** District Judge.

Christopher Lewert, the named plaintiff in a class action on behalf of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. group of California consumers, challenges the district court’s refusal to strike

testimony by an expert witness for Defendant-Appellees Boiron Inc. and Boiron

USA, Inc. (collectively “Boiron”). He further appeals verdicts for Boiron after

bifurcated jury and bench trials on his claims under California’s Consumer Legal

Remedies Act (“CLRA”) and Unfair Competition Law (“UCL”). We affirm.

First, we decline to dismiss the appeal due to Lewert’s failure to comply

with Ninth Circuit Rule 10-3.1, which requires an appellant (1) to serve appellees

with notice specifying which portions of the district court transcript the appellant

intends to order within ten days of filing a notice of appeal, and (2) to order the

transcript within 30 days. Although Lewert’s procedural violation may have

caused inconvenience, the record available to us contains all relevant information

necessary to evaluate his assertions of error.

Second, the district court did not abuse its discretion by denying Lewert’s

motion to strike the trial testimony of Boiron’s expert, Dr. Neil Spingarn. The crux

of Dr. Spingarn’s testimony remained consistent from his initial written report

through trial. That the basis of that opinion and his confidence in it may have

evolved as Dr. Spingarn learned more about how Boiron made Oscillo does not

change its basic character, so the district court acted within its discretion by

allowing him to testify.

Third, Boiron presented sufficient evidence from which the jury could have concluded that Oscillococciuum (“Oscillo”) actually treats the flu and is not a

sugar pill. Because Lewert did not move for judgment as a matter of law at the

close of evidence under Federal Rule of Civil Procedure 50(a), we review only for

plain error. Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212

(9th Cir. 1997). It appears that the jury believed Dr. Spingarn, Boiron’s clinical

studies, and its anecdotal evidence more than it believed Lewert’s expert. Because

neither expert actually tested Oscillo to see if it contained any therapeutic

ingredient, this was a battle of the experts for the jury and not one that Lewert can

relitigate on appeal. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044

(9th Cir. 2014).

Fourth, Lewert’s sole theory why Boiron’s packaging was misleading or

deceptive was that Oscillo was a sugar pill and ergo could not treat flu symptoms.

When the jury found explicitly that Boiron’s representations were not false, it must

have implicitly rejected Lewert’s argument that Oscillo was just sugar. The district

court did not err in treating that factual finding as having preclusive effect on the

UCL claims.

Because Lewert offered no theory as to how Oscillo’s packaging might be

misleading if indeed it treats flu symptoms—regardless of the mechanism by

which it does so—he presented no evidence that would allow him to prevail under

the UCL after the jury rejected his CLRA claims. See Cal. Bus. & Prof. Code § 17200. The district court’s factual finding that Boiron’s claims were not

misleading or deceptive was therefore supported by sufficient evidence and not

clearly erroneous.

AFFIRMED.